Ninth Circuit Lifts Injunction Against Removing 3D-Printed Weapons From Munitions List
3D-printed guns can now be removed from the State Department-regulated U.S. Munitions List following an April 27 decision from the U.S. Court of Appeals for the 9th Circuit. Penned by judges Jay Bybee and Ryan Nelson, the decision lifts an injunction on regulations issued by President Donald Trump in 2018 to transfer “ghost gun” blueprints from the USML to the less-restrictive Commerce Control List.
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
Twenty-two states, along with D.C., filed the lawsuit against the Trump-era decisions. The Bybee and Nelson decision claimed that the court lacked the authority to challenge State Department decisions on what is considered a “defense article” subject to regulation. “Because Congress expressly precluded review of the relevant agency actions here, we vacate the injunction and remand with instructions to dismiss,” the opinion said. The decision was based on the International Security Assistance and Arms Export Control Act of 1976, finding that it is entirely within the president's discretion to remove an article from the Munitions List.
Judge Robert Whaley, placed on the panel by way of designation from the Eastern District of Washington, wrote a dissenting opinion, declaring that the majority's opinion would allow this new regulatory scheme to escape oversight. The dissenting judge found that the president's power to remove items from the Munitions List is separate from his power to designate weapons as subject to the list. “Judicial review over the removal of items from the Munitions Lists would prevent deregulation that is arbitrary or otherwise unlawful,” he said. Whaley would have granted the 22 states' request for a preliminary injunction.